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Tuesday, November 19, 2013

CG Publishes Direct Final Rule on TWIC Use

Today the Coast Guard published a direct final rule in the Federal
Register (78 FR
69292-69296) correcting references in 33
CFR 141 stating that the Transportation Workers Identification Credential
(TWIC) “alone may be accepted by an employer as sufficient evidence of the TWIC
holder's status as a U.S. resident alien”; allowing such individuals to work at Outer Continental Shelf activities.

Section
141.30(d) lists the TWIC as one of four documents that an employer may
accept as stand-alone evidence of an individual’s status as a resident alien.
However, 49
CFR 1572.105(a) lists a number of types of non-resident aliens that are authorized to be
issued a TWIC. This means that a TWIC is not sufficient proof that an individual
is either a citizen or a resident alien.

The preamble to this rule notes that §141.30(d) was added
to the regulation in 2009 without any specific mention of why the sub-paragraph
was added. There is no explanation (not unexpectedly) of why it has taken four
years to find and correct the error.

The Coast Guard is using the unusual technique of issuing a
direct final rule in this instance because there would be no purpose served by
publishing an NPRM and receiving public comments on that document. This is
clearly a legal error in the regulation that must be corrected and no public
comments to the contrary will change that.

It would be interesting to see a report by the DHS IG’s
office looking at how many people were actually incorrectly allowed to work at
the affected Outer Continental Shelf activities as a result of the application
of this incorrect standard.

About Me

I spent 15 years in the US Army as an Infantry NCO. After getting out of the Army I started working in the chemical industry, getting my BSc Chemistry degree while working as a technician. I spent 12 years working as a process chemist in a specialty chemical company. Most recently I worked as a QA/R&D Manager in a specialty chemical manufacturing facility. Currently I am working as a freelance writer.